Mok Charles Peter v. Tam Wai Ho and Another
Read the full judgment text of CACV 115/2009 on BabelCite. This Court of Appeal judgment was delivered on 21 October 2011 before Tang VP, Stock VP and Cheung JA.
Civil procedure – leave to appeal to Court of Final Appeal – application from Court of Appeal judgment on election petition – Legislative Council election for Information Technology Functional Constituency held on 7 September 2008 – whether expenses of a promotion exercise carried out by or on behalf of a person who ultimately becomes a candidate, incurred before he publicly declares an intention to stand or before the election period, constitute 'election expenses' within the meaning of section 2 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) ('ECICO') – concept of imminent election – whether expenses incurred before the election period, the fruits of which are used during the election period, may nonetheless be election expenses – whether section 67(2) of the Legislative Council Ordinance (Cap 542) ('LCO'), requiring the Court to determine whether some other person was duly elected instead, is confined to the ground of 'material irregularity' or also applies to other grounds under section 61(1)(a) of the LCO, including illegal conduct arising from exceeding the statutory maximum election expenses – 'or otherwise' limb – whether issues of great general or public importance – consideration of strength of appeal and desirability of expeditious resolution of election petitions – reliance on Fiona Jones [1999] 2 Cr App R 253 and In the Borough of Oxford (1924) 7 O'M&H 49 – reference to Syed Haider Yahya Hussain v Registrar of Births and Deaths (CACV 77/2000) and Richfine Development Ltd t/a Keng Fai Jewellery v Hugh Rupert Rivington (CACV 257/2008) on the 'or otherwise' limb – Held: leave to appeal refused by majority – introduction of concept of imminent election would create unacceptable uncertainty – election petitions should be resolved quickly – Court of Final Appeal Appeal Committee can give leave if appropriate and can require expedition – Cheung JA dissenting considered the framed questions matters of great general public importance meriting examination by the Court of Final Appeal – costs nisi that the Petitioner pays the Respondents' costs of the application to be taxed unless agreed.
Legal issues: Leave to appeal on whether pre-election period promotion expenses constitute 'election expenses' under ECICO s.2 and on interpretation of LCO s.67(2)
Outcome: Leave to appeal to the Court of Final Appeal refused by majority (Tang VP and Stock VP; Cheung JA dissenting).
Cited by 5 cases · Cites 1 case
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CACV 115/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 115 OF 2006 (ON APPEAL FROM HCAL NO. 141 OF 2008) ____________
____________ BETWEEN
____________ Before: Hon Tang VP, Stock VP and Cheung JA in Court Date of Hearing: 18 October 2011 Date of Judgment: 21 October 2011 ________________ JUDGMENT ________________ Hon Tang VP: 1.This is the Petitioner's application for leave to appeal from our judgment of 9 June 2011. 2.It is said that the application involves questions, which by reasons of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. 3.Two questions have been identified, namely,
4.I take the first question to raise the issue whether expenses incurred prior to the public declaration of candidature or the statutory election period could be regarded as election expenses because they were incurred when the election could be said to be imminent. I remain of the view that the introduction of the concept of an election being imminent will create great uncertainty. 5.However, Mr Lee submits that the answer is Yes because in Fiona Jones [1999] 2 Cr App R 253 Lord Bingham described as succinct and accurate the following statement:
6.But, as Lord Bingham has explained, in the United Kingdom:
7.In my judgment of 9 June 2011 I noted the facts in Fiona Jones as follows:
8.There was no suggestion in Fiona Jones or any of the cases which we have been referred to that prior to the announcement by the Prime Minister of his intention to call a general election (In the Borough of Oxford (1924) 7 O'M&H 49 another decision relied on by Mr Lee, the General Election was accepted to be imminent after the Prime Minister had announced a dissolution of Parliament), an election could be regarded as imminent for this purpose because, for example, of intense speculation (subsequently vindicated) that the Prime Minister might call an election. Elections are too important to permit such uncertainty. 9.Mr Lee emphasised the importance of this issue by reference to the forthcoming election of the Chief Executive. He submitted that a decision on the first issue may bear on the conduct of the likely candidates. He said some potential candidates might have acted on the majority judgment. Whether that is so or not, it is not a sufficient reason for leave to be given. 10.In any event whether this is a point of great general or public importance, I would not grant leave to appeal. In deciding whether to exercise our discretion to grant leave I believe we are entitled to consider the strength of the appeal. Where a member of the court has taken a contrary view, normally I would be unwilling to express any view on the strength of the appeal. In this case, I feel I must express a view to explain why I do not believe this is an appropriate case for us to grant leave to appeal. The strength of the appeal (which, with respect, I regard as low) is one reason why I would not grant leave to appeal. Also, I would be slow to grant leave to appeal because it is desirable that election petitions should be resolved quickly. In refusing leave I know that, if thought appropriate, the Appeal Committee will give leave to appeal. And an application to the Court of Final Appeal for leave to appeal can be heard relatively quickly. There is also the advantage that in granting leave, the Appeal Committee may require the appeal to be heard expeditiously. 11.So far as the second question is concerned, it was hardly argued before us. In any event, it depends on the first issue and is academic otherwise. 12.The Applicant also relies on the "or otherwise limb". 13.He relies on the decision of this Court in Syed Haider Yahya Hussain and Another v. The Registrar of Births and Deaths (unreported, CACV 77/2000, dated 20 February 2001) where leave to appeal on the "or otherwise limb" was granted. In doing so, Rogers VP, giving the judgment of the Court, said:
14.It is true that our decision was not unanimous. But, that is not a sufficient reason for leave to appeal to be granted. 15.In Richfine Development Ltd t/a Keng Fai Jewellery v. Hugh Rupert Rivington (unreported, CACV257/2008, dated 22 June 2009) (Tang VP, Cheung JA and Yuen JA), we said:
16.I would refuse leave to appeal. Hon Stock VP: 17.It would seem from a combination of the terms of the first question posed and the argument advanced in support of it, that the gravamen of the majority judgment of this Court has been misunderstood as suggesting that expenses incurred before the election period for material used during the election period were not election expenses as defined. 18.A reading of paragraphs 115 to 118 inclusive makes clear, I would suggest, that I expressed the view that "expenses incurred before the election period, the fruits of which are used during the election period may nonetheless constitute election expenses": see para 115. Implicit in paragraph 116 , where the emphasis, by contrast, is on an exercise carried out (ie promotion material used) before the election, is the contrary scenario with which this case was primarily concerned. 19.So, on the basis of the majority judgment, the answer to the question posed would be: "It depends on whether the material created by the expenses is utilised during the election period." 20.That said, I can see that the issue to which the question is directed, albeit not as precisely as it might, is a question of importance. But the construction contrary to the view of the majority opens a Pandora's box of uncertainty and the subject matter and the balance of the arguments are such that it seems to me that this is the type of case in which, for the reasons explained by Tang VP, it would be more appropriate for the question of leave to be determined by the Court of Final Appeal. 21.I would therefore refuse leave in relation to the first question. 22.As for the second question, it was not suggested - certainly not by my judgment in the appeal - that section 62 was connected with the specific grounds for questioning an election specified by section 61. The question posed by section 62 is whether, if a person was not duly elected, some other person was duly elected instead. That must turn on the facts. I would refuse leave on the question posed. 23.On the "or otherwise" limb, I would refuse leave for the reasons given by Tang VP. Hon Cheung JA: 24.For my part I consider the issues of pre-election expenses and the basis for the operation of section 67(2) of the Legislative Council Ordinance as identified by the two framed questions are matters of great general public importance that merit an examination by the Court of Final Appeal. Accordingly, I would grant leave to appeal. Hon Tang VP: 25.By a majority leave to appeal is refused with a cost order nisi that the Petitioner pays the Respondent the costs of this application to be taxed unless agreed.
Mr Martin Lee, SC, Mr Hectar Pun and Mr Lee Siu Him, instructed by Messrs Ho, Tse, Wai & Partners, for the Petitioner Mr Daniel Fung, SC, Mr Johnny Mok, SC and Ms Teresa Wu, instructed by Messrs DLA Piper Hong Kong, for the 1st Respondent Department of Justice, for the 2nd Respondent (Appearance excused) Please refer to FAMV41/2011 for the relevant appeal(s) to the Court of Final Appeal. | |||||||||||||||||||||||||||
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